Juror in gender lawsuit sympathized with Pao, sided with Kleiner

Sarah McBride

5 Min Read

SAN FRANCISCO (Reuters) - To some Silicon Valley watchers, the Kleiner Perkins Caufield & Byers gender discrimination case became a referendum on the challenging state of women in technology. But for the lone woman in technology on the jury, an at times unfriendly workplace did not amount to gender discrimination at the powerful venture capital firm.

The jury on Friday cleared Kleiner on all charges of gender bias and retaliation, leaving the technology community scouring the jurors for the thinking behind their decision and for clues on whether other gender discrimination cases can succeed.

For Erin Malone, 51, an alternate juror who sat through four weeks of testimony but did not end up deliberating on the verdict, it came down to the credibility of Ellen Pao, 45, the plaintiff who had once worked as a partner at Kleiner.

Pao’s friendly demeanor crumbled somewhat under cross examination and her performance fell short, Malone said in an interview, echoing the comments of two other jurors interviewed by Reuters who were part of deliberations.

Deliberating jurors included six men and six women, with two men and Malone standing by as alternates. An alternate juror sits through the trial and may be called on as a replacement if an active juror drops out, for example due to illness.

Sympathetic to Pao in many areas, Malone, who designs technology allowing users to interact with apps and websites, said she herself felt she reached a “glass ceiling” when she worked at Yahoo Inc years ago. (Malone left Yahoo in 2007. Since then, the company has had two women chief executives including the present CEO, Marissa Mayer.)

Ultimately, what Malone saw as an environment that was sometimes difficult for women was not enough to sway her on the merits of Pao’s specific case against Kleiner.

“The environment definitely is biased against women in technology, and venture capital is even worse,” said Malone, but “I didn’t find her as credible as she should have been.”

Pao did not return a call seeking comment on Sunday. After the verdict on Friday, she said, “If I’ve helped to level the playing field for women and minorities in venture capital, then the battle was worth it.”

Kleiner spokeswoman Christina Lee said the firm would have no comment beyond its Friday statement, which expressed satisfaction with the jury’s verdict.

“BROGRAMMER” CULTURE

The case unfolded amid frustration with the macho “brogrammer” culture that prevails in Silicon Valley. Over the past year, big tech companies released statistics that showed only about 30 percent of the tech workforce are women.

Malone, who now runs her own user-experience firm, Tangible UX, said she identified with Pao on some levels. For example, Pao’s testimony about sitting through banter among male colleagues concerning porn stars reminded Malone about her own experience listening to colleagues discuss trips to strip clubs.

Her chief reservation with Pao’s case lay in her performance reviews, Malone said. That was also the view of the two other jurors interviewed by Reuters.

While Kleiner’s evaluators lauded Pao on some measures, such as writing and analysis, they repeatedly critiqued her on others, in particular her ability to collaborate with other partners.

“We encourage you to soften your style, to be more collaborative, supportive, particularly of those with whom you don’t easily work,” Kleiner partner John Doerr wrote in Pao’s 2007 review.

Pao’s legal team countered that not working collaboratively with others did not hold back some men.

Malone said Pao’s peers who earned black marks worked from year to year to eliminate their flaws, but Pao seemed to show less effort. She did not see signs that Pao tried harder to work collaboratively, whereas another Kleiner partner who was given feedback on the need to get more operating experience went out to get it.

Malone also said she found Pao clipped and stiff when it came to cross examination by the defendants’ lawyers.

“She was replaced by a robot,” Malone said, adding this made it “harder to believe all of her story.”

Still, Malone pointed to some evidence that worked in Pao’s favor. For instance, Doerr, 63, the firm’s de facto leader, had noted in writing whether female hires were married and had children but did not note the same details about men.

“He’s a product of his generation,” she said.

Malone said she believed Doerr genuinely wanted a gender diverse firm but “maybe doesn’t totally know how to fix it.”